Monday, 18 October 2010

Employees might be allowed to work elsewhere while on sick leave provided they are not drawing sick pay

The dismissal of an employee,
who was working at his own business without his employer consent whilst being on
sick leave and receiving sick pay, may be considered according to the
circumstances fair. In the case McCann v Clydebank College – 2010
UKEATS/0061/09/BI, the dismissal of the employee was indeed considered fair by both
the Employment Tribunal of Glasgow and the EAT of Edinburgh.

The final judgment
of the Tribunal was essentially based on two main points:

1)Depending on the diagnosis,
the fact that an employee is considered unfit to carry out a particular job
does not necessarily entail that this is unable do to other types of jobs. In
this specific case, it was not hence considered per se relevant the fact that
the employee was performing a job elsewhere while having reported illness to
his employer;

2)It was considered
unacceptable that an employee may perform remunerative work whilst receiving
sick pay from his employer.

Two additional interesting
points emerged from this decision, to wit:

1)Whether the
employee should have performed unpaid work, the dismissal would have most likely
been considered as unfair, as it actually occurred in the case Murphy v Nissan
Motor Manufacturing UK Ltd - Employment Tribunal of Newcastle-upon-Tyne, 11
July 2006 Case No. 2511366/04;

2)Whether the
employee would have asked his employer the consent to perform a different work during
sick leave and would have accepted an arrangement for sick pay, this would have
arguably been allowed to perform remunerative job elsewhere during sick leave
and his eventual dismissal would have been as likely as not deemed unfair by
the Court.

The first advice emerging from this Court case to
employers is thus to clearly state in their absence policies that while on sick
leave employees are not allowed to perform any other job, or that this circumstance
is admissible only whether previously discussed and agreed with the employer
and the necessary sick pay arrangements have been made.

Despite the Court
decision is clear and supported by full, careful and detailed reasons, there
are a few points which might appear to be controversial. Points which could have
indeed further supported the appropriateness of the Court decision; albeit it
is clear that to ensure the Appellant all the possible extenuating
circumstances, the Tribunal examined the case very carefully.

The first of these
points concerns the certificate, issued by the local GP, provided by the
Appellant. The certificate, with a general formulation, stated that the patient
was unfit to work and not that this was unfit to work at the college or to perform
a particular type of task. The tribunal judgment stemmed from the assumption that
the circumstance a person is unfit to a particular job does not necessarily
imply that this is unfit to perform a different type of job, albeit this is a
consideration going beyond the Tribunal responsibility. In the event an employee
should hand to his employer a medical certificate and this, certificate
notwithstanding, should persuade the employee to work in that his/her type of
illness should not prevent him/her to perform a different task, whether the
employee should be victim of a sudden and severe health disorder and a
consequent injury, the employer would clearly be considered responsible.

The decision and responsibility to deem whether a
person, generically considered unfit to work, might be actually deemed fit to do
some types of working activities should indeed invariably rest with the GP. The
crucial and decisive importance the Court gave to the fact that the Appellant
was both doing remunerative work and receiving sick pay, albeit acceptable to
some extent, could be considered debatable from the employer point of view to
some other degree.

An organization when
planning its activity is clearly banking on its entire workforce support; the event
an employee is performing a job elsewhere cannot be merely balanced by the fact
that the employer is not paying this any sick pay. The prolonged absence of employees
is in fact highly likely to cause serious problems to a company in terms of work
organization and detriment to its productivity standards.

It would be
interesting to pinpoint to what respect the Court considered the financial
aspect crucial in its decision-making: because the Appellant performed a paid
job while receiving sick pay and thus an extra financial advantage from his
illness or to establish the Appellant degree of involvement in and the significance
attached by this to the other job? The Tribunal, in one of its comments to the
case, considered completely acceptable “a man off with stress tending to his
own garden, shopping or carrying out such activities.” This comment would let
it transpire that the Tribunal considered the financial aspect taking heed of
the unjust enrichment or undue profit derived from the situation to the
Appellant.

The facts

The Appellant is an
automotive engineer employed by the Respondent on a part-time basis contract as
a lecturer in motor engineering. His contract of employment stated that he was
obliged to work for the college for 26¼ hours per week, of which a maximum of
18 hours typically by way of “class contact.” Nonetheless, since the contract of
employment did not provide for any specific schedule for the class- and
non-class-contact, the Tribunal held that the Respondent had the latitude to
determine how the Appellant work should have been timetabled. The Court,
accepting the Appellant’s submission, acknowledged that this was under the
“cycle 1” scheme, according to which his class contact days should have been on
Mondays, Tuesdays or Wednesdays.The Appellant owned a garage where he worked when
he was not teaching at the college; this circumstance was indeed widely known
by his colleagues. Despite the Appellant contract clearly stated that this had
to receive his employer approval for any such outside work, during the appeal the
fact that this did not inform the employer of this additional work commitment was
actually overlooked.

From October 2nd
to December 18th 2006 the Appellant was on certified sick leave by
reason of “stress and hypertension” and thus deemed by the local GP unfit to
work. Since according to his contract of employment the Appellant was entitled
to sick pay for “qualifying days” and this had been defined as “the days in the
week on which the lecturer was actually time-tabled to work” this continued to
be paid during his absence.

The Respondent
suspected that the Appellant might work at his business also when he should
have worked at the college and instructed an inquiry agent to conduct an
investigation. On completion of the investigation, the agent produced a DVD
showing the Appellant at his business clearly involved in working activities.
The Respondent decided thus to suspend the employer and to open a disciplinary
procedure, during which this was unable to provide consistent and coherent
explanations for his behaviour. The Appellant was hence dismissed for gross
misconduct by reason of “working for financial gain while drawing sick pay from
the College.”

The case before the Tribunal

As the DVD clearly
showed the Appellant working at his garage and since that was considered in open
contrast with the circumstance that this received sick pay during that period,
the dismissal for gross misconduct was considered totally justified.

It is worth recalling
that the case for the Respondent was limited to the fact that the Appellant was
receiving sick pay, whilst doing remunerative work elsewhere, without having
informed its employer or having asked its consent. The employer did not contest
the circumstance that whether the employer was fit to work elsewhere he could
have been fit to work at the college, too. The case was not hence presented as
a “malingering” case.

The Appellant, from
his side, admitted having been at the garage as showed by the DVD and justified
his behaviour with the following arguments:

1)Since the reason of
his illness was basically linked to work-related stress, the fact he had been
deemed unfit to work (at the college) did not imply that he was not fit to work
at the garage, although this was not the object of the Court case;

2)He could work at
the garage during the days he was not contractually committed to the college;

3)The DVD was not
clearly showing that he was working at the garage;

4)The dismissal
should have been considered unfair in that vitiated by the surveillance
activity which represented a breach of his rights under Art. 8 of the European
Convention of Human Rights.

The Tribunal’s Reasons

The Tribunal
rejected the Appellant submission that the real reasons for dismissal were unrelated
to his remunerative work at the garage, whilst receiving sick pay from the
college. Yet, the use of surveillance was considered by the Tribunal fair and
neither intrusive nor disproportionate, the evidences contained in the DVD were
judged thus admissible and the provisions of the Art. 8 respected.

As for the Appellant submission that he did not
receive sick pay during the days he was working at the garage in that not
coincident with his obligation to work at the college, the Tribunal concluded that
these were findings of fact with which it, unless some particularly negative
aspect emerged, could not interfere and that the Appellant may have not availed
himself of this distinction in any case.

The Tribunal did
not indeed deem the Appellant conduct dishonest, but whether this would have asked
his employer about the possibility to perform work elsewhere during his illness,
he would have known how to behave and would have put the Respondent in a position
to decide whether to continue to pay him or otherwise. The Appellant did not so
that the Tribunal considered him reckless in this respect. As for his presence
at the garage during his stress-related illness, the Tribunal held that it was sorely
acceptable that this could perform some activities such as gardening or
shopping, but it did not accept that this might be involved in remunerative
activities, as the presence at the garage was since he was receiving a profit.

The Appeal

The appeal was basically
based on three grounds.

Ground 1

Ground
1 was based on new contractual evidence not presented to the Court during the
previous hearings. The new document was, nonetheless, considered uninfluential
to the Court decision and was not hence considered.

Ground 2

The Appellant’s
Solicitor admitted that, albeit the contract of employment of his client
specified the number of hours this was obliged to work, it did not provide for
their schedule. In the Respondent view it was basically a flexible contract, but
there was not such a mention in the contract so that in the Appellant’s
Solicitor opinion it breached the Employment Rights Act 1996. Yet, the
Applicant’s Solicitor stressed the circumstance that the contract did not state
that the Appellant might have been called to work on Thursdays and Fridays; his
dismissal was thus unfair under the circumstances. Reference was made to this
respect to Murphy v Nissan Motor Manufacturing UK Ltd, a judgment of the
employment tribunal sitting at Newcastle-upon-Tyne on 11 July 2006 Case No.
2511366/04.

Nonetheless, Ground
2 was not considered relevant by the Court either. The event that the Appellant
worked from Monday to Wednesday, rather than from Thursday to Friday had been
already recognised by the Tribunal as unexceptionable. Also this point was thus
deemed irrelevant to the consideration of the Appellant dismissal as unfair.

During the hearings,
it was actually cited several times the Court case Murphy v Nissan Motor
Manufacturing UK Ltd. This was a case about an employee dismissed because
carrying out a variety of different works when in sick leave, for which the
Tribunal found it particularly difficult to pinpoint whether some of these were
actually unpaid. Also in this instance, the employee received sick pay from his
organization, but the Court found that the Claimant dismissal had been unfair
on the following bases:

1)Nobody at Nissan
was able to justify the dismissal and clearly explain:

-
To what extent the Claimant’s conduct was objectionable;

-
Which “implied rule” the employee had breached working while receiving sick pay;

-
What the real reason for the Claimant’s dismissal was;

2)It is not
objectionable for an employee who has reported sickness to do other types of
jobs for which this may be fit without receiving compensation.

The Tribunal concluded
that it might have been reasonable to dismiss the claimant whether Nissan would
have introduced a policy clearly stating that the employees who wish to
undertake remunerative work while receiving sick pay need to previously receive
the employer consent; but such a policy had never been introduced at Nissan.

The Solicitor of Mr
McCann relied on this latter point to contend that dismissals in absence of a
specific policy should be invariably considered unfair. Notwithstanding, it can
be hardly argued that in the Nissan case the Judge actually held that in the event an organization has not introduced
a specific absence policy, the dismissal of an employee carrying out paid job
elsewhere has to be automatically considered unfair. In general, when an
employee is contractually bound to work for an employer at a precise time, the contract
obliges this on an exclusive basis and the employee cannot hence work elsewhere
for other employers at the same time. The fact of being ill does not change
anything to this respect. Despite the organization has nothing to lose whether under
such circumstances his employee do a job for which this remains fit, the
employer is still paying for that time getting nothing in change; yet, the fact
the employee works elsewhere might jeopardize his recovery capability.

In essence,
employers provide sick pay to their employees based on the assumption that these
are unable to make any earning during their illness; but whether this should
not be the case the employees’ duty to inform their employer and have its
consent to work elsewhere should be considered as a minimum requirement. Moreover,
this notification can enable the employer to eventually make the necessary arrangements
as regards sick pay. The fact an employee makes a double earning should
invariably constitute and be treated as serious misconduct.

The Appellant’
Solicitor reference to the breach of the Employment Rights Act 1996 was hence considered
by the Court “parenthetical” and accepted as such by the Appellant’s Solicitor
himself.

Ground 3

This ground was
still aiming at emphasizing the circumstance that the Appellant did not have
any formal obligation to work on Thursdays and Fridays and that he had been
object of surveillance activities during those days, breaching as such the Art.
8 of the Human Right Act, circumstance that the Tribunal did never consider as
relevant.

Conclusions

The appeal lodged
by Mr McCann against the Clydebank College was finally rejected by the Tribunal
and his dismissal confirmed. Considering this case and Murphy v Nissan Motor
Manufacturing UK Ltd, it clearly emerges that Courts decide these cases
according to the circumstances, to wit:

- Does the employee
receive sick pay?

- Has the employee
informed his/her employer that s/he will do a different job during sick leave?

- Has any pay
arrangement been agreed between the employer and the employee?

- Has the employer
introduced an absence policy explaining employees what to do under these
circumstances?

Employers as well
as employees should take heed of these specific aspects and act accordingly.

Longo, R., (2011), Employees might be allowed to work elsewhere while on sick leave
provided they are not drawing sick pay; HR Professionals, [online].